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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, June 28, 2012 ::
    The mighty Ed Whelan has noticed it too.

    He also takes on the question: who in fact wrote the "joint dissent"?  Ed first floats the view that the joint dissent was drafted as the Opinion of the Court, but then Roberts failed to find it persuasive, thus yanking its fifth vote. But OTOH, says Ed, why would the Chief not have assigned the Opinion of the Court to himself in the first place?

    Well, I defer to Ed on the mechanics and politics of these things, but it is perfectly clear that large swaths of the joint dissent bear unmistakable stylistic signs of Scalia; and I don't mean only that last two pages - the only parts that actually look like a dissent from the controlling opinion. Yet I don't insist that Scalia wrote the whole thing: occasionally it sags, suggesting the work of other hands.

    (Do I sound here like a Jacobean drama prof discussing whether a disputed Shakespeare play, like "Two Noble Kinsmen of Edward III That Ends Well" or something, may have had a co-author?)

    Kennedy read out the bench version this morning; perhaps for this reason, NRO is running part of it under his by-line. Much honor to him to signing onto the whole thing. Why did he do the honors this morning? Maybe because "another Scalia dissent" would be too typical: showcasing support for the joint dissent's views from a perceived "moderate" has value. Or, perhaps to show solidarity despite some Scalia-Kennedy tangles in the past. Perhaps Kennedy originally had the assignment (from Roberts, to write for the Court), then courteously accepted some Scalia paragraphs.

    I don't know. But two things are clear: 1. There's a lot of Scalia in it. 2. A "joint dissent" (as opposed to a dissent by Justice A, joined by Justices B, C, and D) is rare, if not unprecedented, so we're being signalled that this is a very unusual situation.

    :: David M. Wagner 4:58 PM [+] ::

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